Can You Seal Your Divorce Record?

Nearly everyone going through a divorce prefers that the record for his or her case be sealed so it remains private. On the other hand, the public has an interest in protecting the justice system from private arrangements that might compromise the judicial system. And a transparent judicial system available at all times for public inspection ensures that litigants are able to predict how judges will rule in many cases, which helps them negotiate with each other with greater confidence. This, in turn, fosters greater judicial economy.

So how should judges rule when one of the parties requests that the proceedings in a divorce case be sealed? We have a useful explanation available to us in the form of Ex parte Gentry, Case No. 2160155 (Ala. Ct. Civ. App. January 27, 2017). In the midst of a proceeding dealing with a petition for grandparent visitation, the trial court in Jefferson County directed the circuit clerk to “place this entire case UNDER SEAL” (capitalization in the original). No party moved the court to take this action, no hearing was held on it, and the order provided no reason for the action. On the appeal of the children’s father objecting to the placement of the seal, the grandparents simply responded that the court sealed the case because the cases “involve[] minor children and embarrassment or irreparable harm could occur.”

In its analysis of the arguments on either side dealing the sealing issue, the appeals court quoted extensively from Holland v. Eads, 614 So.2d 1012 (Ala. 1993): “‘Generally, trials are open to the public. However, public access must be balanced with the effect on the parties.’ Ex parte Balogun, 516 So.2d 606, 610 (Ala. 1987). Nevertheless, the decision concerning access to the court records has long been recognized as within the trial court’s discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This does not mean that the trial court’s discretion should be unfettered; rather, it should be governed by legal rules and standards.”

After discussing the advantages to the public from openness and freely available court records, the appeals court further quoted Holland: “There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual’s privacy interest (as set out above) rises above the public interest in accessHolland, 614 So.2d at 1016 (emphasis in original).

With reference to the Gentry case, the appeals court observed that the trial court’s order sealing the cases contained no written findings of the need for sealing the records and that “the wholesale sealing of an entire record is by its nature overbroad . . . Although no party brought a motion seeking to seal any part of the record, we conclude that, under Holland, a trial court considering whether to seal documents must hold a hearing at which the parties may present arguments regarding the necessity of sealing specific parts of the record. Any order sealing any portion of the record must contain written findings in compliance with Holland that clear and convincing evidence supports a conclusion that the relevant “privacy interest (as set out [in Holland]) rises above the public interest in access.” Holland, 614 So.2d at 1016. The appeals court therefore granted the father’s writ of mandamus insofar as it related to the court’s sealing of the case record.

Holland and Ex parte Gentry are useful in that they clarify the need for a hearing and findings of fact before sealing a family court ruling, but they don’t fully respond to the issue. It’s not at all unusual for both parties in a divorce case to desire for the proceedings to be sealed, so simply giving both parties an opportunity to register objections to sealing is incomplete. Someone needs to take account of and articulate the public interest in full disclosure and comprehensive transparent records. That’s the interest most easily ignored in cases like this.

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